That precedent has already been tentatively established, but it needs to be strengthened by a clear and direct ruling that upholds copyright and clarifies that the Takings Clause applies.
Hickey 23 – Legislative Attorney at the Congressional Research Service, former Fellow at the University of California, Berkeley, J.D. from New York University School of Law.
Kevin J. Hickey, “Copyright in Standards Incorporated by Reference into Law and the Pro Codes Act,” Congressional Research Service, 09-26-2023, https://sgp.fas.org/crs/misc/R47656.pdf
The Takings Clause of the Fifth Amendment states that “private property [may not] be taken for public use, without just compensation.”112 In simple terms, the Takings Clause provides that the federal or state governments113 may take an individual’s property only when (1) it is for a public use;114 and (2) the government pays just compensation to the property owner.115 For example, consistent with the Takings Clause, the government may use its eminent domain power to appropriate real property for the construction of a railroad, as long as it pays the owner the fair market value of the land.116
In decisions involving copyright in IBR standards, courts have sometimes invoked the Takings Clause as a reason to be cautious about holding that incorporation into law extinguishes the copyright in standards or model codes. For example, a recent district court decision noted that “a bright line rule that any privately developed model code adopted into state law automatically becomes part of the public domain . . . may raise significant concerns under the Takings Clause.”117 Other courts have rejected this reasoning, arguing that because SDOs urge governments to adopt their standards, the Takings Clause (which usually involves a coercive seizure of property) is inapplicable.118
Although courts have discussed the Takings Clause in conjunction with other arguments, none of the cases discussed above involved a formal takings claim, and it does not appear that any court has directly decided how the Takings Clause applies to IBR standards. Theoretically, if the courts ruled that IBR standards fell into the public domain upon adoption into law, an SDO might sue the federal or state government under the Takings Clause for compensation based on the loss of their copyright. Under federal law, property owners may sue the United States for takings claims or copyright infringement in the U.S. Court of Federal Claims.119